ALI AKBAR QURESHI, J.---This first appeal calls in question the validity and propriety of an order dated 01.08.2008, passed by the learned Addl: District Judge, Lahore, while exercising the powers conferred under Rule 10 of the West Pakistan Requisitioning of Immovable, Property (Temporary Powers) Rules, 1962, on a petition filed before the learned District Judge, Lahore, by -the appellant for settlement of the compensation of the property owned by the appellant and requisitioned by respondent No. 1.
2. The appellant, being the owner of the suit property which was requisitioned by respondent No, 1/Government of Punjab, through. Secretary Education, Civil Secretariat, Lahore, filed a petition under Rule 10 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Rules, 1962, for settlement of the compensation of requisitioned property (enhancement of compensation) on the ground, that the suit property owned by the appellant measuring 6 marlas, consisted of 8 rooms and open space was requisitioned by the respondent No,1 on 06.03.1978 for running a school namely M-B Islamia Girls Middle School, Mughalpura, Lahore and started depositing the compensation a Rs,450/- per month in favour of the owner, the compensation being deposited by the respondent-government was not just, fair and lastly prayed that the compensation (rent) be enhanced to Rs,9,000/- from the date it was requisitioned.
The suit was contested by the respondents on the ground, that the claim is barred by time and the compensation being paid by respondent No,1 is just and fair and the appellant is not owner of the property.
Learned Additional District Judge to whom the case was entrusted framed the following issues:- I. Whether the petitioner has no locus standi and cause of action? ,OPR
2. Whether the petition is not maintainable?
3. Whether the petitioner is entitled to assessment of fair compensation? If so, to what extent? OPP
4. Relief.
The learned Additional District Judge after recording the evidence decided issue No,1 against the respondents, issue No,2 which pertains to the limitation, in the manner, that the appellant is entitled to claim the compensation only for the period of three years and not beyond that. While deciding issue No,3 the learned court enhanced the compensation from Rs,450/- to Rs,4000/- per month only for the period of three years.
3. Learned counsel for the appellant relied upon a judgment delivered by the Hon'ble Supreme Court of Pakistan i.e, "Government of the Punjab through Secretary Education, Lahore v. Shahida Begum" (1994 SCMR 1488) and concluded his arguments.
4. On the other hand, learned Assistant Advocate-General submitted, that the respondent- department has already paid an amount of Rs,5,90,425+2,41,342=(Rs,8,31,767/-), therefore, nothing is due against the respondent-department. As regard the enhancement of the compensation the learned Assistant Advocate-General relied upon two judgments of this Court titled "Azmatullah and another v. Secretary to Government of West Pakistan" (PLD 1978 Lahore 979) and "Home Department, Government of Punjab through Secretary and others v. Mian Irshad Hussain" (PLD 2010 Lahore 654).
5. Although both the learned counsel for the parties after submitting the aforesaid citations concluded their arguments but in order to decide the matter, the findings recorded by the learned Additional District Judge/trial court and the record was perused carefully.
6. From the findings it is found, that the learned Additional District Judge decided Issue No,2, which relates, to the limitation of filing the suit and claiming the compensation/rent. Learned Additional District Judge while deciding the aforesaid issue stated as under:- ' "Onus to prove this issue was on the respondent. Contention of respondent in written reply is that petition was not maintainable as it was time barred. The property in question was admittedly requisitioned by respondent No.1 vide order dated 06.03.1978. The instant petition was filed on 05.09.1993 i.e, after about fifteen years from the date of requisition. Rate of rent cannot be enhanced beyond a period of three years, before institution of the instant petition, as per law.
Hence, the contention of petitioner for enhancement of compensation can only be considered to the extent of past three years prior to the filing of this petition and claim prior to that period is time barred. This issue is thus decided accordingly."
7. It is evident from the record, that this petition was filed under a special law pertaining to the requisition of the private property for public use. According to the provisions of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Rules, 1962, the owner of the property if not satisfied with the compensation fixed by the requisitioning authority, firstly will approach to the requisitioning authority and on its refusal after issuing the statement in writing will file a Reference to the Arbitrator within thirty days thereafter for fixation of the compensation. The relevant Rules are reproduced hereunder:-
8. Determination of Compensation---(1) The owner of a requisitioned building shall, as soon as possible, after the requisitioning thereof, negotiate with the Requisitioning Authority or its representative for fixing, by agreement, the amount of compensation payable to the owner for the use and occupation of his property.
(2) If the owner does not within a fortnight of, the Service on him of the order requisitioning his building, move the Requisitioning Authority for fixation of compensation for the use and occupation of the building, the Authority shall proceed to determine under section 7 of the Act, the amount of compensation payable to him. '
(3) An offer of the compensation assessed under sub-rule (2) shall be made to the person or persons interested in the property, and if not accepted within thirty days of the making thereof shall be deemed to have been refused; Provided that the Requisitioning Authority may extend the period as it may deem fit where such person or persons show willingness to negotiate.
(4) Where possible refusal of the offer of compensation should be obtained in writing.
9. Requisitioning Authority's Statement---(1) Within seven days of the refusal of the offer of compensation, the Requisitioning Authority, shall deliver to the person or persons interested in the property, a duly authenticated statement in writing setting forthwith-
(a) Particulars of the property in such detail as the case may require;
(b) The amount of compensation assessed by the Requisitioning Authority;
(c) The grounds on which such amount was determined; and
(d) The date on which the period of limitation prescribed in the next succeeding rules expires.
(2) A written acknowledgment shall be taken of the delivery of such statement.
10. Reference to the Arbitrator about the fixation of the compensation---(1) Within thirty days of the receipt of such statement, the party contesting the assessment may make an application to the arbitrator for assessing the proper compensation due to him and supply simultaneously a copy . Thereof to the Requisitioning Authority.
(2) Where no application is made within the prescribed time limit the compensation fixed under sub-rule (2) of rule 8 shall remain operative.
8. The afore-referred Rules made under Section 13 of the Act, have given the limitation to file the petition/Reference to the arbitrator meaning thereby the statute has itself given the limitation to file the petition for fixation of the compensation before the forum available in the law. In this case the learned trial court/Additional District Judge while deciding issue No,2 has neither consulted the law and discussed the relevant provisions which deal with the limitation. Thus the learned Additional District Judge seriously erred in law not to decide the issue No,2 as required by the law, therefore, the findings of issue No.2 are not sustainable and set aside.
9. Since the main question in this case revolved around the limitation which is mix question of law and facts and can only be decided by recording the evidence.
10. The ratio of the citations supra is, that the petition filed under the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Rules, 1962, is to be decided in terms thereof, therefore, without further commenting upon the facts of the case the matter is remanded to the learned District Judge, Lahore to decide the case afresh strictly in accordance with law.
11. Resultantly, this appeal is allowed, order dated 01.08.2008, passed by the learned Addl: District Judge, Lahore, is set aside and the c case is remanded to the learned District fudge, Lahore, to decide the same afresh strictly in accordance with law.
12. Parting with the judgment, parties to the case shall appear before learned District Judge, Lahore, on 03.02.2016 and no notice for the service shall be issued to the parties by District Judge, Lahore.
No order as to costs.